TMI Blog2019 (11) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... se worked . It is also on record and also admitted by the respondent themselves that the impugned goods i.e. human hair are dressed. In all these cases the human hair were declared as dressed by respondent himself on the export documents. Once the human hair are dressed these automatically fall under RITC 6703 and not under 0501. It is also on record that the Director of the M/s. DCS International has himself accepted in his statement dated 30-5-2013 before the Customs authorities that they had inadvertently claimed drawback against the impugned Shipping bills since they had worked on human hair which were exported. Test from the CSFL laboratory also confirm that the human hair are worked and hence rightly classifiable under RITC 6703. Thus the contention of the Commissioner (Appeals) that classification of the impugned export goods prior to 2012 cannot be challenged as there were no samples drawn from the respective consignments is not tenable. Power of Commissioner (Appeals) to remand the case back to the original authority is concerned - HELD THAT:- The remand powers of Commissioner (Appeals) stands withdrawn with effect from 11-5-2001 vide Finance Act of 2001 - Hence Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of goods which was declared on 114 Shipping Bills filed prior to 12-12-2012 observed that the goods in question were not unworked but worked and were therefore rightly classifiable under Chapter 67 where the fate of drawback was nil instead of 1% as was being claimed by the respondent under Chapter 5 of the Drawback Schedule. Accordingly, the samples were drawn and sent for testing and export consignments were allowed clearance provisionally after conversion of drawback Shipping bills into non Drawback Shipping bill as per the request of the respondent. This fact has been stated in Order-in-Original. CFSL vide their report dated 31-12-2013 in respect of the impugned goods stated that the root ends and tip ends are arranged together; in some of the hairs, the process of coloring has been done; the presence of cuticle shows that the process of making the hairs cuticle free has not been done; and the cutting has been done from one end in most of the hairs. It has also been observed by the adjudicating authority that the respondent had prior to September, 2011 classified the impugned goods under Chapter 67 so as to claim benefit under the erstwhile DEPB scheme wherein the desc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The test report of CFSL confirmed that the impugned goods (hair) were worked . The respondent had themselves mentioned classification under RITC 67030010 in respect of the past shipments when the impugned goods were exported under DEPB scheme and later on they changed the classification to RITC 0501 after the closure of DEPB scheme with effect from 3-9-2011. It is observed that there was no Drawback incentive on the goods classifiable under CTH 6703 at the material time. Further the applicant has submitted that order of Commissioner (Appeals) in remanding back the case to the lower adjudicating authority in respect of the balance 16 shipping bills is erroneous in the light of Hon ble Supreme Court judgment dated 1-7-2007 in Civil Appeal No. 6988/2005 in the case of M/s. MIL India Limited [2007 (210) E.L.T. 188 (S.C.)]. 4. Personal hearing was fixed on 25-9-2019 in this case. No one appeared on behalf of the applicant or the respondent on this date. However, the applicant vide their letter dated 25-9-2019 requested for a copy of the Revision Application. Another date of hearing was fixed on 7-10-2019. Sh. B.K. Singh, Advocate and Sh. R. N. Singh, consultant appeared on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise worked . It is also on record and also admitted by the respondent themselves that the impugned goods i.e. human hair are dressed. In all these cases the human hair were declared as dressed by respondent himself on the export documents. Once the human hair are dressed these automatically fall under RITC 6703 and not under 0501. It is also on record that the Director of the M/s. DCS International has himself accepted in his statement dated 30-5-2013 before the Customs authorities that they had inadvertently claimed drawback against the impugned Shipping bills since they had worked on human hair which were exported. Test from the CSFL laboratory also confirm that the human hair are worked and hence rightly classifiable under RITC 6703. Thus the contention of the Commissioner (Appeals) that classification of the impugned export goods prior to 2012 cannot be challenged as there were no samples drawn from the respective consignments is not tenable. It is observed that the respondent has been exporting the identical goods since 2011 bearing the same description. At no stage have they brought forth any evidence to establish that there has been any change in the description warranting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner (Appeals) to remand the case back to the original authority is concerned it observed that the remand powers of Commissioner (Appeals) stands withdrawn with effect from 11-5-2001 vide Finance Act of 2001. Hon ble Supreme Court in its judgment dated 1-7-2007 in Civil Appeal No. 6988/2005 in the case of M/s. MIL India Limited [2007 (210) E.L.T. 188 (S.C.)] has noted the provisions of amended law, which is reproduced below : In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Hence Commissioner (Appeals) has been authorized to act as an Adjudicating Authority and is obliged to pass necessary orders if it is found that the original Adjudicating Authority has passed an order which is not legal and proper. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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